'Gross miscarriage of justice': unfit to plead but still locked up

No-one goes to prison unless found guilty of a crime, right? Well no, Marlon Noble did.

Although he never appeared in court and was never convicted of a offence, Mr Noble, an Indigenous man from Geraldton, spent more than 10 years in a Western Australian prison.

Marlon Noble, who was imprisoned for 10 years without being found guilty of a crime.Credit:Justin McManus

And the 35-year-old, who has an intellectual disability after suffering meningitis as a child, remains subject to a custody order that restricts his every move even though he is no longer in jail.

Noble's story is an example of how "unfit to plead" laws represent a risk for people with cognitive disabilities, say researchers at Melbourne University's Social Equity Institute in a new report.

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These laws are supposed to protect accused people from being put on trial if they can't understand the legal process.

But they can stop people with disabilities getting justice and even mean they are locked up indefinitely, the report finds.

In Mr Noble's case, he was 19 when he was charged with the sexual penetration of a nine-year-old and a 14-year-old.

Because of his intellectual disability, he was declared "unfit to stand trial" and remained in jail for 10 years without conviction, held under a law that provides for the indefinite detention of people found unfit to plead.

Unlike people with mental health conditions, who are detained in psychiatric hospital if found "unfit to plead", there was no specialised facility for Mr Noble.

How common is this? In Victoria, for example, between 2000-2012 there were 159 "unfit to plead" declarations in the higher courts.

We don't know what percentage of these relate to intellectual disability. But we do know 40 per cent of men in Victorian prisons have an acquired brain injury.

"At present there would be hundreds of people [in Australia] who are detained indefinitely, with no conviction," says Social Equality Institute researcher Dr Piers Gooding.

In 2011, while Mr Noble was still in prison, the alleged victim and their mother denied that Noble had ever harmed them and supported his release.

In the same year a forensic psychologist released a report that said, with assistance, Noble was now able to plead and stand trial and he would like to plead not guilty to the charges.

But the Department of Public Prosecutions told the court that because Noble had been imprisoned for so long - far longer than he would have been sentenced if found guilty of all charges - the charges had been withdrawn.

Mr Noble was released from prison in 2012, partly because West Australian journalist Colleen Egan reported on his plight.

The Social Equity Institute has run a trial that put disability support workers into three legal services; Victoria, the Northern Territory and New South Wales. With support, more clients were able to go to court, says Dr Gooding.

"Marlon could have participated in the criminal trial and avoided this whole gross miscarriage of justice," he says.

Mr Noble remains under a custody order; he reports to Corrections weekly, must not use alcohol or drugs and can have no contact with children other than his young daughter.

He hopes this will end soon: "I feel like I'm always juggling".

Last year, the UN Committee on the Rights of Persons with Disabilities found Mr Noble's human rights were being violated by the State and he should be compensated.